The Supreme Court and the Jerusalem Debate
By SETH LIPSKY
Former Israeli Prime Minister Menachem Begin used to warn against deciding the political status of Jerusalem in the U.S. Congress. But what about at the Supreme Court? It's a pressing question because America's highest court might soon rule on whether, under American law, Jerusalem is or is not part of Israel.
The court has just agreed to hear a case in which Secretary of State Hillary Clinton is being sued by a 9-year-old American citizen named Menachem Binyamin Zivotofsky. M.B.Z., as the court refers to the youth, was born in Jerusalem and wants the American Embassy in Tel Aviv to issue him a certificate of birth abroad stating that he was born in Israel.
What makes the case so explosive is not only that it involves the question of Jerusalem, but that it also pits the executive branch against the Congress. In agreeing to hear the case, the court specifically ordered the lawyers to focus on whether the law "impermissibly infringes the President's power to recognize foreign sovereigns." The case also involves presidential signing statements. Can a president, in signing a piece of legislation, announce that he doesn't agree with part of it and doesn't intend to enforce the law?
Mrs. Clinton's lawyers argue that this case raises a political question of the kind that the Supreme Court has steered away from in the past. But it's not a dispute between, say, Democrats and Republicans. It involves a law passed in 2002, when the Senate was controlled by the Democrats and the House by the Republicans.
The relevant law is the part of the Foreign Relations Authorization Act of 2002 that deals with "United States policy with respect to Jerusalem as the capital of Israel." The Supreme Court will adjudicate the provision stating that, for "purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary [of State] shall, upon the request of the citizen or the citizen's legal guardian, record the place of birth as Israel."
The bill passed the Senate, of which Mrs. Clinton was then a member, by unanimous consent. In other words, she's now refusing to carry out a law she helped pass. But when President George W. Bush signed the law, he issued a signing statement suggesting that he didn't intend to enforce that part of the law. The measure, he said, "impermissibly interferes with the President's constitutional authority to conduct the Nation's foreign affairs and to supervise the unitary executive branch."
Mr. Bush also complained that "the purported direction" would, "if construed as mandatory rather than advisory, impermissibly interfere with the President's constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states."
Mr. Bush was challenged by the infant Mr. Zivotofsky—via his parents—not long after he was born. In the fight over whether the Supreme Court would take the case, Mrs. Clinton echoed Mr. Bush's concerns, citing her department's view that "any unilateral action by the United States that would signal, symbolically or concretely, that it recognizes that Jerusalem is a city that is located within the sovereign territory of Israel would critically compromise the ability of the United States to work with Israelis, Palestinians and others in the region to further the peace process."
So far, lower courts have agreed with Mrs. Clinton that this matter is a "political question" and not justiciable. But the young Mr. Zivotofsky's lawyer, Nathan Lewin, was able to convince the Supreme Court to hear the case by arguing, in part, that this matter is no longer a "political question" precisely because Congress has already acted.
Given all the other foreign affairs and political disputes in which Congress does act—from foreign aid to the United Nations to the Senate's ratification of treaties—it's illogical to suggest that the terms for issuing certificates of birth abroad are beyond the reach of the elected legislature.
Mr. Lipsky, editor of the New York Sun, is the author of "The Citizen's Constitution: An Annotated Guide" (Basic Books, 2009).